Migration Law

This document discusses the legality of a business transaction between Andy and Shirley for Australian citizenship, the penalties for offering or receiving benefits for sponsorship, and the requirements for a partner visa application. It also advises Shirley to disclose the truth about her relationship with Andy and to discontinue with the partner visa application. The bibliography lists books, journals, legislation, and websites for further reading.

Running head: MIGRATION LAW
MIGRATION LAW
Name of the Student
Name of the University
Author Note

1MIGRATION LAW
Table of Contents
Question 1..................................................................................................................................2
Question 2..................................................................................................................................2
Question 3..................................................................................................................................4
Question 4..................................................................................................................................5
Bibliography...............................................................................................................................6

2MIGRATION LAW
Question 1
Andy’s offer to Shirley regarding helping her to get Australian citizenship by
marrying her, not only fails to constitute a marriage of a lifetime commitment, in the usual
sense, it is also evident that the marriage is not genuine and hence has no commitment of
continuation1. It is clearly a business transaction constituting a contract between the two, as it
involves monetary exchange in regard to Andy marrying Shirley in lieu of $100,000. In
addition, the fact that Andy has a previous record of sponsoring another woman for a
permanent partner visa 6 years ago may be an issue provided that he is divorced from the
previous marriage at present, while helping Shirley23. The Australian Department of Home
Affairs that lays down criteria for different visa application restrict a person from being a
sponsor for a partner visa applicant if he had being a sponsor earlier45. However, part 1.20J of
the Migration Regulations 1994 states that a person could offer sponsorship after 5 years
from the previous sponsor6. Usually a sponsor is the partner himself, in case of a Partner visa
application. Therefore, in general sense it may not be an issue if Andy sponsors Shirley again,
provided that the marital relationship which he had with the other woman has been ended
legally and thereby proving that this visa application is genuine and does not manipulate the
information as per one’s own convenience78.
1 Khoo, Siew‐Ean. "The context of spouse migration to Australia." (2001) 39.1 International Migration 111-
132.
2 Birrell, Bob. "Spouse migration to Australia." (1995) 9 People and Place3.1
3 Migration Regulations 1994, reg 1.20J
4 "Subclass 820 Partner Visa (Temporary)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore/temporary-820#Eligibility>.
5 Migration Regulations 1994, reg 1.20J
6 Ibid.
7 Hugo, Graeme. "Change and continuity in Australian international migration policy." (2014) 48.3 International
Migration Review 868-890.
8 Migration Regulations 1994, reg 1.20KA

3MIGRATION LAW
Question 2
Section 245AR of the Migration Act 1958 restricts a person from receiving benefit
from another in lieu of helping the other person in a sponsorship related event. The general
sanction of this section is an imprisonment for two years or penalty of 360 units or both.
However the Civil penalty of this provision is 240 penalty units9.
Section 245AS of the Act, a person is prohibited from offering a benefit to another in
exchange of a sponsorship related event10. In doing so the person shall be penalised with 240
penalty units by a Civil Court. However an exception to the rule is applied in case of
professional services which one may seek for assistance required for immigration or visa
related services.
The entire arrangement of Andy helping Shirley to get an Australian citizenship by
way of marrying her in exchange of $100,000 for his efforts is unlawful. The information that
Andy shared with Shirley regarding him helping another woman from mainland China to
receive an Australian citizenship in the same way (by way of marriage in exchange of a sum
of money) is illegal and subject to civil as well as criminal penalty under section 245AR of
the Act. Shirley would also be liable to civil penalty as stated under the Act, for seeking
benefits from another person in terms of a sponsorship related event.
Question 3
As per the relationship requirement held by the Department of Home Affairs, the
applicant may seek a stay visa on the sponsorship of a de facto relationship or a marital
relationship with a person who is an Australian citizen. While the partner visa is in processing
stage, if the status of the relationship changes, the applicant could still get a permanent
9 Migration Act 1958 (Cth), s 245AR.
10 Migration Act 1958 (Cth), s 245AS.

4MIGRATION LAW
partner visa, subject to intimation given to the Department of Home Affairs11. The
Department also lay down that an applicant who is a victim of family violence could still get
a partner visa if the applicant has been granted temporary partner subclass 820 Visa in
Australia, and when her relationship has ended and she has been subjected to family violence
by a partner as held by regulation 1.23 of the Migration Regulations 19941213. In this regard,
the applicant must declare about the same to the Department14.
Advise for Shirley’s Visa
Therefore, it is advised to Shirley, she could continue with her partner visa
application, subject to the intimation made to the department of home affairs regarding the
changes in the circumstances that might affect any of the questions in the application form, as
held by Section 104 of the Migration Act 195815. Shirley is also advised to disclose about her
toxic relationship with Andy and things he did to her and another woman from mainland
china in lieu of money along with the part of the violence involved in their relationship as
held under regulations 1.22 and 1.23 of Migration Regulations 19941617.
Question 4
Part 2.9A of the Migration Agents Regulation 1998 states that a registered migration
agent while communicating or furnishing information to the Department of Home Ministry
must not deceive the department in terms of an application by way of concealing relevant
information from the department18.
11"Your Relationship Has Ended", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/change-in-situation/relationship-ended>.
12 Ghafournia, Nafiseh. "Battered at home, played down in policy: Migrant women and domestic violence in
Australia." (2011) 16.3 Aggression and Violent Behavior 207-213.
13 Migration Regulations 1994, reg 1.23.
14 Migration Regulations 1994. Reg 1.25.
15 Migration Act 1958 (Cth), s 104.
16 Segrave, Marie, and Cathrine Burnett-Wake. "Addressing family violence through Visa Sponsor Checks: A
step in the right direction?." (2017) 29.2 Current Issues in Criminal Justice 155-165.
17 Migration Regulations 1994, reg 1.22, 1.23
18 Migration Agents Regulations 1998, part 2.9A.

5MIGRATION LAW
Part 2.17 of the Migration Agents Regulations 1998, migration agents must not
encourage the client to lodge an application which is vexatious or grossly unfounded19. Part
3.1 asks the registered migration agent to preserve the confidentiality of the client20. Part 3.2
of the Regulation directs the agent not to disclose any confidential information regarding the
client without taking the client’s written permission, unless it is of such importance that the
law requires the migration agent to disclose it21.
Therefore, the migration agent should not encourage Shirley to continue with this
vexatious and unfounded application as her credentials of the Temporary Partner subclass
820 Visa is based on false information and deception to the Department of Home Affairs. The
migration agent is under the obligation to let Shirley know about the civil and criminal
penalties that may be imposed on her in case the Department of Home Affair finds out the
discrepancies regarding her Partner Visa application. Therefore it would be wise for her to
take the decision to discontinue with the Partner visa application and to return to her home
country2223. In case Shirley disagrees, the migration agent shall be bound by law to intimate
the Ministry about the discrepancies in Shirley’s application as it violates the provisions of
Migration Act 1958.
Advise for Shirley’s Visa application
It is advised to Shirley that she should allow the agent to disclose her arrangements
with Andy to the Department of Home Ministry so that he can help her return to Macau. She
19 Migration Agents Regulations 1998, part 2.17.
20 Migration Agents Regulations 1998, part 3.1.
21 Migration Agents Regulations 1998, part 3.2.
22 Collins, Jock. "Multiculturalism and immigrant integration in Australia." (2013) 45.3 Canadian Ethnic
Studies 133-149.
23 Shu, Jing, and Lesleyanne Hawthorne. "Asian student migration to Australia." (1996) 34.1 International
migration (Geneva, Switzerland) 65-95.

6MIGRATION LAW
should also be intimated that her stay in Australia is unlawful based on false information and
arrangement which can get her in trouble. Therefore, it would be safe for her to return to
Macau.

7MIGRATION LAW
Bibliography
Books/Journal
Birrell, Bob. "Spouse migration to Australia." (1995) 3.1 People and Place 9
Collins, Jock. "Multiculturalism and immigrant integration in Australia." (2013) 45.3
Canadian Ethnic Studies 133-149
Ghafournia, Nafiseh. "Battered at home, played down in policy: Migrant women and
domestic violence in Australia." (2011) 16.3 Aggression and Violent Behavior 207-213
Hugo, Graeme. "Change and continuity in Australian international migration policy." (2014)
48.3 International Migration Review 868-890
Khoo, Siew‐Ean. "The context of spouse migration to Australia." (2001) 39.1 International
Migration 111-132
Segrave, Marie, and Cathrine Burnett-Wake. "Addressing family violence through Visa
Sponsor Checks: A step in the right direction?." (2017) 29.2 Current Issues in Criminal
Justice 155-165
Shu, Jing, and Lesleyanne Hawthorne. "Asian student migration to Australia." (1996)
34.1 International migration (Geneva, Switzerland) 65-95.
Legislation
Migration Act 1958 (Cth)
Migration Agents Regulations 1998
Migration Regulations 1994
Websites

8MIGRATION LAW
"Subclass 820 Partner Visa (Temporary)", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/partner-onshore/temporary-
820#Eligibility>
"Your Relationship Has Ended", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
https://immi.homeaffairs.gov.au/change-in-situation/relationship-ended